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By Hon. Rick Boucher, Sidley & Austin LLP
A recent Congressional hearing underscored how many Senators remain deeply, even angrily, concerned about the low availability of high-speed internet access in rural America. From the tenor of the hearing, one would rightly conclude that the need for greater broadband deployment is the single most pressing internet policy issue of our time.
During the hearing, Senate Commerce Committee Chairman John Thune (R-SD) asked Federal Communications Commission Chairman Ajit Pai pointedly whether the FCC would “commit to providing a solution for rural broadband” by the end of the year (answer: yes). FCC Commissioner Mike O’Rielly emphasized that 14 million Americans do not have access to broadband today. And Senator Jon Tester (D-MT) said his concern is addressing the areas that have “no G,” even as many Americans are beginning the important transition from 4G to 5G broadband service.
Unfortunately, the continuing saga of the net neutrality debate, which has now raged for more than a decade, has taken the oxygen out of the room and diverted attention from the very practical and pressing concern over lack of broadband for so many in the United States. Because of the almost exclusive preoccupation with net neutrality, the bandwidth has simply not existed for sufficient policy focus on the availability of broadband.
The sooner the debate over net neutrality is resolved the better, and a straightforward solution is within reach if Democrats and Republicans are willing to put political considerations aside and adopt a statute that allows both sides to achieve their core objectives.
Democrats would realize their long-held goal of strong net neutrality protections through a codification of the core principles of the 2010 Open Internet Order, adopted during the tenure of Democratic FCC Chairman Julius Genachowski. Republicans would realize their long-held goal of the statutory designation of broadband as a Title I information service—the way that broadband was treated for the 20-year period from the Clinton administration until the FCC’s decision in 2015 to reclassify broadband as a Title II common carrier service.
That 20-year period was the golden age for American internet investment. Light-touch information services regulation gave broadband providers the confidence to invest, and that investment made America’s communications network the envy of the world. It’s a regulatory classification that has proven the test of time.
Information services status for broadband is also the key to providing fast internet access to rural America. Even under the best of circumstances, it’s devilishly hard to attract the investment capital necessary to expand broadband in rural areas. Fiber-optic lines must be strung over long distances and challenging terrain to connect lightly populated communities where, due to relatively low prevailing incomes, the uptake rate of subscribers may be well below the national average.
When, in 2015, the FCC greatly multiplied those challenges by creating the regulatory uncertainty of Title II common carrier treatment for broadband, investment predictably plummeted. After all, when broadband providers didn’t know from one day to the next which of the vast array of potential common carrier regulations the FCC would choose to deploy—from price regulation to network unbundling requirements—investment was naturally withheld. And given the difficulty of attracting broadband capital to rural America generally, it was the lightly populated, remote areas that suffered first with the investment decline.
The statutory designation of broadband as a Title I information service is one key to putting the net neutrality debate to rest, and it’s also essential to creating a regulatory climate appropriate for broadband investment in rural areas.
The Senate hearing put the focus where it needs to be: solving the real-world problem of connecting rural Americans to our information mainstream. But before that solution is possible, Congress needs to clear away the underbrush by passing a bipartisan bill that finally and conclusively puts the net neutrality debate to rest, assuring both an open internet and permanence for the time-tested treatment of broadband as a lightly-regulated information service.
Rick Boucher (D-Va) represented a rural congressional district in southwest Virginia for 28 years and chaired the House Energy and Commerce Committee’s Subcommittee on Communications and the Internet. He is honorary chairman of the Washington, DC-based Internet Innovation Alliance (IIA) and head of the government strategies practice at the law firm Sidley Austin. The views expressed in this article are those of the author and not necessarily those of Bloomberg Law.
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